Sam Whiting v. Beverly, City of - Public Schools (SPR 20251009)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 16, 2025 SPR25/1009 Erin Brown Executive Director of Operations Beverly Public Schools 70 Balch Street Beverly, MA 01915 Dear Ms. Brown: On April 11, 2025, this office received your petition on behalf of the Beverly Public Schools (School/District) seeking permission to waive statutory limits to fees and to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the School furnished a copy of the petition to the requestor, Sam Whiting, Esq., of the Massachusetts Family Institute. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 9, 2025, Attorney Whiting requested: [1] Emails and communications sent between Beverly Public School administrators (or their designees) and BPS staff pertaining to puberty education or sex education[;] [2] Emails and communications received by Beverly Public Schools (school committee members, administration, or staff) that pertain to puberty education or sex education, or contain any of the following [six identified] terms: … and any responses to or forwards of these emails[;] [3] Emails and communications that contain the url. . .[.] Petition to assess fees – Municipalities The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Erin Brown SPR25/1009 Page 2 April 16, 2025 In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

Erin Brown SPR25/1009 Page 2 April 16, 2025 Petition to Assess Fees In its petition, in addition to charging for segregation and redaction required by law pursuant to Exemption (a) of the Public Records Law and the attorney-client privilege, the School argues the following in support of its request to charge for segregation and redaction under Exemption (c): The requested documents contain materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. In particular, the records contain personal contact information for individuals involved in the requested communications. It is understood that personal phone numbers and email addresses may be withheld pursuant to Exemption (c). See SPR13/077. Moreover, there may be documents responsive to this request addressing individuals’ personal experiences with the subject matter, which would undoubtedly qualify as an unwarranted invasion of personal privacy. Based on the information provided in its fee petition, I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). Fee in Excess of $25.00 per Hour In its petition, the School requests to charge a fee of $75.00 per hour, and provides the following in support of its request: [T]he District seeks to assess higher fees for time spent redacting records that fall within statutory exemptions beyond Exemption (a) of G.L. c. 4, §7(26) given the likelihood that the aforementioned categories of information need to be redacted. Specifically, the District seeks approval to charge an hourly rate of $75 per hour spent redacting, an amount typically approved by your office in response to fee petitions of this nature. Any time spent searching for and compiling documents would be charged at the rate of $25 an hour. The redaction of the requested documents requires both knowledge in law and knowledge of the facts at issue. Accordingly, this redaction cannot be performed by a District employee; rather, it must be completed by legal counsel for the District. In particular, the records requested must be reviewed and redacted by an individual who is knowledgeable, well-versed and trained in case law responsive to Exemptions (a) and (c) and specifically, how the Supervisor of Public Records and courts have interpreted the type of information that may be redacted and applying those decisions to the requested record. In light of the School’s petition, I find the School has partially met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). The School

Erin Brown SPR25/1009 Page 2 April 16, 2025 may assess an hourly rate limited to $75.00 for attorney review for segregation and redaction under the attorney-client privilege. However, the School may not assess a fee in excess of $25.00 per hour for other tasks. G. L. c. 66, § 10(d)(iii). Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the School may assess a fee for segregation and redaction. Additionally, while the School may assess a fee limited to the hourly rate of $75.00 for attorney review, the School may not assess a fee in excess of $25.00 for other tasks. Further, I encourage the parties to communicate to enable the School to provide records in an efficient and affordable manner. Please note, Attorney Whiting has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Sam Whiting, Esq.